Gerald R. Haddox and Sharon Haddox v. Federal National Mortgage Association

ACCEPTED
03-15-00350-CV
8083814
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/3/2015 6:50:20 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00350-CV

FILED IN
3rd COURT OF APPEALS
In The Court of Appeals AUSTIN, TEXAS
For the Third District Court of Appeals 12/3/2015 6:50:20 PM
Austin, Texas JEFFREY D. KYLE
Clerk

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPELLANTS’ BRIEF

KARLA HUERTAS, SBN: 24087765
WILLIAM B. GAMMON, SBN: 07611280
GAMMON LAW OFFICE, PLLC.
1201 Spyglass Drive, Suite 100
Austin, Texas 78746
Phone: 512-444-4529
Fax: 512-545-4279
Firm@GammonLawOffice.com
COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellants,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPELLANTS’ BRIEF

KARLA HUERTAS, SBN: 24087765
WILLIAM B. GAMMON, SBN: 07611280
GAMMON LAW OFFICE, PLLC.
1201 Spyglass Drive, Suite 100
Austin, Texas 78746
Phone: 512-444-4529
Fax: 512-545-4279
Firm@GammonLawOffice.com
COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
PAGE 2 OF 22
 IDENTITY OF PARTIES AND COUNSEL

Appellants: Appellants’ Counsel:
Gerald R. Haddox and WILLIAM B. GAMMON, SBN: 07611280
Sharon Haddox KARLA HUERTAS, SBN: 24087765
GAMMON LAW OFFICE, PLLC.
1201 Spyglass Drive, Suite 100
Austin, Texas 78746
Phone: 512-444-4529
Fax: 512-545-4279
Firm@GammonLawOffice.com

Appellee: Appellee’s Counsel:
Federal National Mortgage Sarah S. Robbins, SBN: 24074966
Association Hughes, Watters & Askanase, LLP
333 Clay, 29th Floor
Houston, Texas 77002
Telephone: 713.759.0818
Facsimile: 713.759.6834
ssr@hwallp.com

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
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 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................3
TABLE OF CONTENTS............................................................................4
TABLE OF AUTHORITIES .....................................................................5
STATEMENT OF THE CASE ..................................................................6
RECOMMENDATION ON ORAL ARGUMENT .................................7
ISSUES PRESENTED ................................................................................8
STATEMENT OF FACTS .........................................................................8
SUMMARY OF THE ARGUMENT…………………………………..12
ARGUMENT .............................................................................................12

A. Standard of Review…………………………………………………......12
B. The County Court lacked jurisdiction…………………………14
C. Collateral estoppel bars FNMA from bringing
the present forcible detainer action………………………………..20

PRAYER ....................................................................................................21
APPENDIX ...............................................................................................23
CERTIFICATE OF SERVICE ...............................................................22
CERTIFICATE OF COMPLIANCE .....................................................22

APPELLANTS’ BRIEF
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 INDEX OF AUTHORITIES

TEXAS SUPREME COURT CASES

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984) 21
Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001) 17
Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 623
(Tex. 2012) 18
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) 17
Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) 14
Tex. Lottery Comm'n v. First State Bank of Dequeen,
325 S.W.3d 628, 635 (Tex. 2010) 16, 18

TEXAS COURTS OF APPEALS CASES
Charleston v. Allen, 420 S.W.3d 134
(Tex. App.-Texarkana 2012, no pet. h.) 17
Doncer v. Dickerson, 81 S.W.3d 349
(Tex. App. – El Paso 2002, no pet.) 15
HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766
(Tex. App.—Dallas 2012, pet. dism'd) 19
In re H.C.S., 219 S.W.3d 33
(Tex. App. – San Antonio 2006, no pet.) 15
Mays v. Pierce, 203 S.W.3d 564
(Tex. App. Houston [14th Dist.] 2006) 14
Save Our Springs Alliance, Inc. v. City of Dripping Springs,
304 S.W.3d 871 (Tex. App.-Austin 2010) 13, 15

TEXAS RULES

Texas Rule of Appellate Procedure 47.7 17
Tex. R. Evid. 301(b) 18

TEXAS CODES AND STATUTES

Tex. Business Organizations Code §153.309(a)(1) 15
Tex. Business Organizations Code §153.309(a)(2) 15
Tex. Business Organizations Code §9.251 16, 17, 18, 19
Tex. Business Organizations Code § 1.002(28) 18
Tex. Local Government Code §192.007(a) 10, 20

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
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 STATEMENT OF THE CASE

1.01 On May 2, 2014, Appellee Federal National Mortgage Association (“FNMA”)

filed a forcible detainer action against the Appellants Gerald R. Haddox and Sharon

Haddox (“Appellants” and/or “Haddoxes”).1

1.02 On May 20, 2014, Appellants filed their Original Answer, Plea to the

Jurisdiction and Motion to Dismiss. Following a hearing on May 22, 2014,

Appellants’ motion was granted and the court entered an Order dismissing

Appellee’s case.2

1.03 On May 27, 2014, Appellee appealed the justice court’s decision in this

forcible detainer action to the county court at law.

1.04 A trial was held de novo on December 5, 2014 during which the trial court

entered an Order dismissing Appellee’s case with prejudice.3

1.05 Appellee filed a motion for new trial on December 18, 2014 and, following a

hearing on January 6, 2015, the motion was granted on January 12, 2015.4

1.06 The case proceeded to a second de novo trial and on May 29, 2015 Judge Eric

M. Shepperd entered his Order awarding possession of the property to Appellee.5 It

is from this Order that the Haddoxes appeal.

1
(CR 63 - 83)
2
(CR 18)
3
(CR 117)
4
(CR 169)
5
(CR 207-208)

APPELLANTS’ BRIEF
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 STATEMENT REGARDING ORAL ARGUMENT

Appellants suggest that the issues presented should not be determined on the

record alone and that oral argument is necessary. The issues presented have become

sufficiently muddled by misinterpretation and the law sufficiently misapplied that

oral argument would benefit the panel.

/s/ William B. Gammon
William B. Gammon

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
PAGE 7 OF 22
TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:

Appellants, Gerald R. Haddox and Sharon Haddox, plead that this honorable

Court of Appeals reverse the judgment of the Travis County Court at Law Number

2 and render judgment in favor of Appellants.

ISSUES PRESENTED

2.01 Did the County Court have jurisdiction to determine right of possession when

Appellee lacked standing to maintain its forcible detainer action against Appellants?

2.02 Does the doctrine of collateral estoppel bar Appellee from bringing the present

suit which involves the same parties, issues and subject matter previously litigated

in three other forcible detainer actions?

STATEMENT OF FACTS

3.01 On or about August 27, 1999, Appellants purchased the real property at 6508

Taylorcrest Drive, Austin, Travis County, Texas 78749 (the “Property”). They

financed the purchase with a loan from National Mortgagelink I, Ltd. (“National

Mortgagelink”), a Texas Limited Partnership (hereinafter “the Lender”), for

$184,320.00, giving a 30 year fixed rate note (“the Note”) to the Lender in return.

As security for the note, Appellants executed a deed of trust in favor of the Lender.6

3.02 On July 7, 2006 the Office of the Texas Secretary of State notified National

Mortgagelink that the entity’s right to conduct affairs in the state of Texas had been

6
(CR 74 - 80)

APPELLANTS’ BRIEF
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forfeited.7 National Mortgagelink did not revive its right to transact business.

3.03 On November 8, 2006, the Secretary of State cancelled the right of the limited

partnership to transact business.

3.04 Despite thus fading from existence, FNMA claims that at some point

thereafter National Mortgagelink assigned the mortgage to Federal Deposit

Insurance Corporation (“FDIC”) as receiver for IndyMac Federal Bank, FSB,

Successor to IndyMac Bank, FSB.

3.05 No such assignment was ever recorded as required under §192.007(a) of the

Local Government Code.8 In fact, FDIC instead filed an “Affidavit of Lost

Assignment” in the property records of Travis County, Texas claiming that FDIC

was the current mortgagee but admitting it could not produce any assignment,

recorded or unrecorded, to prove that claim.9 This “Affidavit of Lost Assignment”

is a fictional device invented by FDIC and is wholly insufficient to establish an

assignment of the mortgage.

3.06 On June 22, 2010, the same day the “Affidavit of Lost Assignment” was

recorded, Bryan Bly, a notorious robo-signer at a document mill in Florida, allegedly

7
(RR Vol.4, p. 33-34)
8
Sec. 192.007. Records of Releases and Other Actions.

(a) To release, transfer, assign, or take another action relating to an instrument that
is filed, registered, or recorded in the office of the county clerk, a person must file,
register, or record another instrument relating to the action in the same manner as
the original instrument was required to be filed, registered, or recorded.
9
(RR Vol.4, p. 30)

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
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acting on behalf of FDIC, recorded a “Corporate Assignment of Deed of Trust”

assigning Appellants’ mortgage to OneWest Bank, FSB (“OneWest Bank”).10

3.07 On July 12, 2011 Hughes, Watters & Askanase recorded a “Notice of

Substitute Trustee’s Sale” on behalf of OneWest Bank setting the sale for August 2,

2011. Appellee FNMA claims to have acquired the Property at this foreclosure sale.

3.08 Ten days later, OneWest Bank recorded an “Appointment of Substitute

Trustee” stating it appointed the substitute on February 8, 2010. Incredibly, this date

is more than 4 months before OneWest claims to have acquired ownership of

Appellants’ mortgage. Thus, it is a void action for lack of authority.

3.09 On August 12, 2011, Hughes Watters & Askanase recorded a “Substitute

Trustees Deed” in the official property records of Travis County.11

3.10 On August 24, 2011, Appellee filed a forcible detainer action against the

Appellants (Cause No. 051621). The case was dismissed on appeal in County Court

at Law No. 2, Travis County, Texas.

3.11 On or about August 2012, Appellee filed a second forcible detainer action

against the Appellants (Cause No. 053364). On appeal in County Court at Law No.

2., the court granted Appellants’ Plea to the Jurisdiction for lack of standing pursuant

to Tex. Business Organizations Code § 153.309 and dismissed the suit.12 On January

10
(RR Vol.4, p. 28)
11
(CR 130 – 133)
12
(CR 177)

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
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23, 2013, the Court denied Appellee’s Motion for Reconsideration.13

3.12 On November 20, 2013, Appellee filed a third forcible detainer action against

the Appellants (Cause No. 056393). The Appellants filed a motion to dismiss

asserting that the Court has already ruled that Appellees lack standing to maintain

the action and thus the doctrine of res judicata bars Appellee’s request for relief. The

court agreed with Appellant’s motion to dismiss, dismissed the case and awarded

sanctions and attorney’s fees to the Appellants.14

3.13 On May 2, 2014, Appellee filed a fourth forcible detainer action against the

Appellants (Cause No. 057256).15 Appellants again filed a Plea to the Jurisdiction

and Motion to Dismiss.16 The court again found that Appellants’ Plea to the

Jurisdiction and Motion to Dismiss were meritorious and dismissed the case.17

3.14 On May 27, 2014, Appellee appealed the court’s decision to the county court

at law. A trial was held de novo on December 5, 2014 during which the trial court

entered an Order dismissing Appellee’s case with prejudice and awarding attorney’s

fees to the Appellants.18

3.15 Appellee filed a motion for new trial on December 18, 2014, which was

13
(CR 178)
14
(CR 182)
15
(CR 63 - 83)
16
(CR 34 – 50)
17
(CR 18)
18
(CR 117)

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
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granted on January 12, 2015.19

3.16 The case proceeded to a second de novo trial and on May 29, 2015 Judge Eric

M. Shepperd entered his Order awarding possession of the property to Appellee.20 It

is from this Order that the Haddoxes appeal.

SUMMARY OF THE ARGUMENT

4.01 Appellee lacks standing to maintain the present action because 1) National

Mortgagelink forfeited its right to transact business in Texas barring Appellee from

filing suit in the state of Texas pursuant to Tex. Business Organizations Code §

153.309; and 2) National Mortgagelink, the original noteholder, never subsequently

assigned the Note, as the right to litigate comes by assignment, Appellee does not

have standing to sue Appellants.

4.02 Since the present case involves the same parties, issues and subject matter as

the three previous forcible detainer cases, the doctrine of collateral estoppel bars the

Appellant from bringing the present suit and the final judgment is void as a matter

of law.

ARGUMENT AND AUTHORITIES

A. Standard of Review

5.01 The court reviews de novo whether the lower court had subject-

19
(CR 169)
20
(CR 207-208)

APPELLANTS’ BRIEF
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matter jurisdiction and whether the Appellee has alleged facts that affirmatively

demonstrate subject-matter jurisdiction. Save Our Springs Alliance, Inc. v. City of

Dripping Springs, 304 S.W.3d 871, 877 (Tex. App. Austin 2010). The court is not

to consider the merits of Appellee’s claims beyond the extent necessary to resolve

the jurisdiction issue. Id.

5.02 In order for the court to uphold the County Court’s ruling, it must find that the

point of error alleged by Appellants is not meritorious.

In a nonjury trial, when no findings of fact or conclusions
of law are filed or properly requested, it is implied that the
trial court made all the necessary findings to support its
judgment. Roberson v. Robinson, 768 S.W.2d 280, 281, 32
Tex. Sup. Ct. J. 337 (Tex. 1989);see Pharo v. Chambers
Cty., 922 S.W.2d 945, 948, 39 Tex. Sup. Ct. J. 614 (Tex.
1996)(stating that, in a bench trial in which the trial court
does not file findings of fact or conclusions of law,
appellate courts presume the trial court made all findings
in support of its judgment). Nevertheless, because a
complete reporter's record is a part of the appellate record
in this case, appellants may challenge both the legal and
factual sufficiency of the trial court's findings. See
Roberson, 768 S.W.2d at 281. We apply the same
standards of review to these challenges as those applied in
review of jury findings. See id.

Mays v. Pierce, 203 S.W.3d 564, 2006 Tex. App. LEXIS 8374 (Tex. App.

Houston [14th Dist.] 2006).

APPELLANTS’ BRIEF
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 B. The County Court lacked jurisdiction to enter an Order because
FNMA does not have standing.

1. Tex. Business Organizations Code §153.309 precludes FNMA from
maintaining the present suit.

5.03 FNMA, as a successor/assignee of National Mortgagelink, has no right to

judgment in a Texas court, because FNMA lacks standing. “A judgment is void if it

is apparent that the court rendering the judgment had no jurisdiction of the parties,

no jurisdiction of the subject matter, no jurisdiction to render the judgment, or no

capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990).

5.04 “Subject-matter jurisdiction is essential to the authority of a court to decide a

case, and standing is a component of subject-matter jurisdiction.” Save Our Springs

Alliance, Inc., 304 S.W.3d 871 at 878. As an element of subject-matter jurisdiction,

standing is an issue that can be raised at any time. In re H.C.S., 219 S.W.3d 33, 34

(Tex. App. – San Antonio 2006, no pet.). Standing is a question of law for

determination by the court. Doncer v. Dickerson, 81 S.W.3d 349, 358 (Tex. App. –

El Paso 2002, no pet.). In determining whether FNMA had standing, the court must

determine whether FNMA is allowed to bring the present lawsuit. Id.

5.05 When National Mortgagelink forfeited its right to transact business in Texas

it rendered National Mortgagelink, and thus FNMA, incapable of maintaining a suit

against the Appellants in the State of Texas. Appellee lacks standing pursuant to

Tex. Business Organizations Code §153.309(a)(1) and (2). Tex. Business

APPELLANTS’ BRIEF
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Organizations Code §153.309 (a)(1) and (2), entitled “Effect of Forfeiture of Right

to Transact Business,” state:

(a) Unless the right of the limited partnership to transact
business is revived in accordance with Section 153.310:

(1) the limited partnership may not maintain an
action, suit, or proceeding in a court of this state; and

(2) a successor or assignee of the limited
partnership may not maintain an action, suit, or proceeding
in a court of this state on a right, claim, or demand arising
from the transaction of business by the limited partnership
in this state.

5.06 In construing a statute the court’s primary objective is to give effect to the

Legislature's intent. Tex. Lottery Comm'n v. First State Bank of Dequeen, 325

S.W.3d 628, 635 (Tex. 2010). The legislature’s intent is ascertained based on the

plain meaning of the text. Id. It is presumed that “the Legislature selected language

in a statute with care and that every word or phrase was used with a purpose in

mind.” Id. The plain language in Tex. Business Organizations Code §153.309 (a)(1)

and (2) clearly states that when a limited partnership forfeits its right to transact

business in Texas neither it nor its successors/assignees may maintain an action or

suit in a Texas court on a claim arising from business transacted in Texas.

5.07 It is an undisputed fact that the Texas Secretary of State terminated National

Mortgagelink’s right to transact business in Texas.21 National Mortgagelink did not

21
(RR Vol.4, p. 33-34)

APPELLANTS’ BRIEF
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revive its right to transact business in Texas. Therefore, neither National

Mortgagelink nor FNMA, as a successor/assignee of National Mortgagelink, can

maintain the present suit and any Order entered in this case granting relief to FNMA

is void as a matter of law.

5.08 Appellee alleges that it has standing to maintain this suit pursuant to Tex.

Business Organizations Code §9.251. §9.251 enumerates activities conducted by

foreign entities that do not constitute as the “transaction of business” in Texas. In

support of its argument Appellant relies, virtually exclusively, on an unpublished

case from the United States District Court for the Western District of Texas2223.

However, pursuant to Texas Rule of Appellate Procedure 47.7, “unpublished

opinions have no precedential value and must not be cited as authority by counsel or

by a court.” Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001). Furthermore,

this is a federal case ergo it is not binding on this court. Charleston v. Allen, 420

S.W.3d 134, 137 n.6 (Tex. App.-Texarkana 2012, no pet. h.) (“[O]pinions of

the federal circuits are not binding on state courts.”).

5.09 Appellee’s argument fails to acknowledge that chapter 9 of the Business

Organization Code applies specifically, and only, to foreign entities. In fact the title

of chapter 9 is “Foreign Entities.” Furthermore, the very first sentence of §9.251 is:

22
Hofrock v. Federal National Mortgage Association, No. A-13-CV-1013-LY.
23
(RR Vol. 3, page 21, line 8-18) Due to a typographical error, the Reporter’s Record spells
“Hofrock” as “Hoffrau”.

APPELLANTS’ BRIEF
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“For purposes of this chapter, activities that do not constitute transaction of

business in this state include. . .” (emphasis added).

5.10 Although the Legislature expressly and unambiguously stated that §9.251 is

to be applied only to foreign entities, the lower court erroneously applied the statute

to National Mortgagelink, a domestic partnership. The court is required to “consider

the statute as a whole.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.

2001). It cannot choose to apply an isolated provision in a statute and disregard the

remaining language in the statute. Id.

5.11 Based on the language of the statutes, it is evident that the Legislature intended

§9.251 to be applied to chapter 9 only and not to the entire Texas Business

Organizations Code as Appellee contends.

5.12 National Mortgagelink is not a foreign entity. The definition of a foreign entity

is “an organization formed under, and the internal affairs of which are governed by,

the laws of a jurisdiction other than this state.” Tex. Business Organizations Code §

1.002(28). The court is bound to construe the term “foreign entity” to mean what the

Legislature defined it to mean. Tex. Lottery Comm'n v. First State Bank of Dequeen,

325 S.W.3d 628, 637 (Tex. 2010). National Mortgagelink was formed in Texas and

the Partnership Agreement filed with the Texas Secretary of State by National

Mortgagelink specifically states it is to be governed by the laws of the State of

APPELLANTS’ BRIEF
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Texas.24

5.13 Thus, chapter 9 of the Business Organization Code does not apply in this case

and Appellee may not rely on the exceptions laid out in this chapter. On the other

hand, Chapter 153 of the Texas Business Organization Code applies to limited

partnerships.

5.14 The Legislature has chosen to draft two completely different and distinct

chapters to distinguish from the statutes that apply to domestic limited partnerships

and the statutes that apply to foreign entities. To interpret §9.251 in conjunction with

§153.309 would result in conflicting law.

5.15 Therefore, it is clear that Business Organizations Code §9.251 does not apply.

5.16 The plain language in Tex. Business Organizations Code §153.309 precludes

FNMA, as a successor/assignee of National Mortgagelink, from maintaining the

present suit and any Order entered in this case granting relief to FNMA is void as a

matter of law.

2. FNMA has not plead sufficient facts to demonstrate standing to sue
Appellants.

5.17 Even if National Mortgagelink had not forfeited its right to transact business

24
Appellants respectfully request this court take judicial notice of the Partnership Agreement
attached hereto in Appendix 1. Pursuant to Tex. R. Evid. 301(b), “[a]n appellate court may take
judicial notice of a relevant fact that is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Freedom Communs., Inc. v. Coronado, 372 S.W.3d
621, 623 (Tex. 2012) (citations omitted). “Judicial notice of such a fact is mandatory if a party
requests it and supplies the necessary information.” Id (citations omitted).

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 in Texas, FNMA would still lack standing to pursue the present suit because FNMA

has not plead sufficient facts to demonstrate that it in fact has any interest in the

Property or that there is any relationship between FNMA and the Haddoxes,

landlord/tenant or otherwise.

5.18 The “[s]tanding doctrine focuses on whether a party has a sufficient

relationship with the lawsuit so as to have a justiciable interest in the outcome.”

HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012,

pet. dism'd). An assignee has standing to assert only those causes of actions

previously belonging to its assignor. Id. Absolutely no evidence exists to establish

that National Mortgagelink assigned its rights under the Note to FDIC or any other

subsequent entity. Therefore, no such right was conferred to FNMA, there is no

relationship between FNMA and the Haddoxes and FNMA has no interest in this

forcible detainer suit.

5.19 FNMA alleges that the Note and Deed of Trust were assigned by National

Mortgagelink to FDIC, but fails to produce any evidence to support its assertion.

There is no assignment filed in the Travis County public records as required under

§192.007(a) of the Local Government Code25 and Appellee has never produced an

25
Sec. 192.007. Records of Releases and Other Actions.

(a) To release, transfer, assign, or take another action relating to an instrument that
is filed, registered, or recorded in the office of the county clerk, a person must file,
register, or record another instrument relating to the action in the same manner as
the original instrument was required to be filed, registered, or recorded.

APPELLANTS’ BRIEF
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assignment. The only evidence proffered by Appellee is an “Affidavit of Lost

Assignment”.26 This “Affidavit of Lost Assignment” was fabricated by FDIC and is

wholly insufficient to establish an assignment of the mortgage. The only actual

purpose the “Affidavit of Lost Assignment” may serve is as a judicial admission by

FDIC that no assignment exists. Therefore, FDIC had no rights or interest under the

Note or Deed of Trust to convey to Onewest Bank making it impossible for Onewest

Bank to assign any rights to FNMA.

5.20 FNMA is without authority to sue Appellants under the Note and FNMA has

not plead sufficient facts to demonstrate standing to sue Appellants. Thus, the

evidence is legally and factually insufficient to support the County Court’s

judgment.

C. The doctrine of collateral estoppel bars FNMA from bringing the present
forcible detainer action against the Appellants.

5.21 Although Texas does not give res judicata effect to forcible detainer

judgments, the doctrine of collateral estoppel still applies. Collateral estoppel is

narrower than res judicata. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818

(Tex. 1984). “It is frequently characterized as issue preclusion because it bars

relitigation of any ultimate issue of fact actually litigated and essential to the

judgment in a prior suit, regardless of whether the second suit is based upon the same

26
(RR Vol.4, p. 30)

APPELLANTS’ BRIEF
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cause of action.” Id.

5.22 Where it involves the same parties, issues and subject matter, prior judgment

is treated as an absolute bar to retrial of claims pertaining to the same cause of action.

Id.

5.23 This lawsuit, like the three previous forcible detainer actions, involve the same

parties, the same piece of real property, and the same issues. Therefore, the doctrine

of collateral estoppel bars Appellee from bringing the present suit.

PRAYER

Appellants Gerald R. Haddox and Sharon Haddox respectfully request that

this Court reverse the judgment of the County Court at Law in all things and remand

for further action consistent with its opinion.

Respectfully submitted,

_________________________________
/s/ William B. Gammon
WILLIAM B. GAMMON, SBN: 07611280
KARLA HUERTAS, SBN: 24087765
GAMMON LAW OFFICE, PLLC.
1201 Spyglass Drive, Suite 100
Austin, Texas 78746
Phone: 512-444-4529
Fax: 512-545-4279
Firm@GammonLawOffice.com
COUNSEL FOR APPELLANTS

APPELLANTS’ BRIEF
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 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
served via this court’s ECF system on this 3rd day of December, 2015 to the
individuals listed below:

Sarah S. Robbins, SBN: 24074966
Hughes, Watters & Askanase, LLP
333 Clay, 29th Floor
Houston, Texas 77002
Telephone: 713.759.0818
Facsimile: 713.759.6834
ssr@hwallp.com

By:_ /s/ William B. Gammon
WILLIAM B. GAMMON, SBN: 07611280

CERTIFICATE OF COMPLIANCE
In accordance with Texa Rule of Appellate Procedure 9.4(i) I hereby certify that
the foregoing Appellant’s Brief contains 2,241words.

By: /s/ William B. Gammon
WILLIAM B. GAMMON, SBN: 07611280

APPELLANTS’ BRIEF
CAUSE NO.: 03-15-00350-CV
PAGE 22 OF 22
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX

Item 1 Judgment of the Trial Court CR 207-208

Item 2 Order of the Justice Court CR 18

Item 3 Gerald R. Haddox’s Original Answer CR 34 – 50

Item 4 Complaint for Forcible Detainer CR 63 - 83

Item 5 Deed of Trust CR 74 – 80

Item 6 Order of the County Court CR 117

Item 7 Substitute Trustee’s Deed CR 130 – 133
Item 8 Order for new trial CR 169

Item 9 Order on plea to the jurisdiction CR 177

Item 10 Order on motion for reconsideration CR 178

Item 11 Order of the Justice Court CR 182

Item 12 Corporate Assignment RR Vol.4, p. 28

Item 13 Affidavit of Lost Assignment RR Vol.4, p. 30

Item 14 Notice of Forfeited Rights RR Vol.4, p. 33-34

Item 15 Certificate of Limited Partnership
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 1

Judgment of the Trial Court CR 207-208
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 2

Order of the Justice Court CR 18
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 3

Gerald R. Haddox’s Original Answer CR 34 – 50
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 4

Complaint for Forcible Detainer CR 63 - 83
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 5

Deed of Trust CR 74 – 80
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 6

Order of the County Court CR 117
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 7

Substitute Trustee’s Deed CR 130 – 133
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 8

Order for new trial CR 169
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 9

Order on plea to the jurisdiction CR 177
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 10

Order on motion for reconsideration CR 178
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 11

Order of the Justice Court CR 182
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 12

Corporate Assignment RR Vol.4, p. 28
 11/~llfflll/~lffl~I/WII~IIHI/Iffli~IHI TRV
2010089111
I PC

Loan#: 511327

CORPORATE ASSIGNMENT OF DEED OF TRUST
FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is hereby acknowledged, the
undersigned, FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC
FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B., WHOSE ADDRESS IS 6900
BEATRICE DR., KALAMAZOO, M149009, (ASSIGNOR), by these presents does convey, grant. sell, assign,
transfer and set over the described deed of trust together with the certain note(s) described therein, together with
all interests secured therehy, all liens, and any rights due or to become due thereon, to OneWest Bank, FSB,
WHOSE ADDRESS IS 888 E. WALNUT STREET, PASADENA, CA 91101, ITS SUCCESSORS OR
ASSIGNS, (ASSIGNEE)

Said Deed of Trust dated 08/3011999 executed by SHARON HADDOX AND GERALD R. HADDOX and
recorded as lnstr# 1999098156 in Book , Page in the records of Real Property of TRAVIS County, Texas.

This assignment is made without recourse, representation or warranty, express or implied, by the FDIC in any
capacity.
IN WITNESS WHEREOF, the said corporation has caused these to be signed by its duly authorized officer,
0512812010.
FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC FEDERAL
BANK,FSB, SU CESSOR INDYMAC BANK, F .S.B.

STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared
BRYAN BL Y known to me to be the person and officer whose name is subscribed to the foregoing imtrumcnt and
acknowledged to me that the same was the act of the said FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B., a
corporation, and that they executed the same as the act of such corporation for the purposes and consideration
therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE 05128/2010.

CHRISTOPHESl;.,.,'Y PoNio
My commission expires:OS/03120 12

Document Prepared By: Robert E. Fletcher- c/o NTC, 2100 Alt. 19 North, Palm Harbor, FL 34683 (800)346-9152

When Recorded Return to:
One West Bank. FSB
C/0 NTC 2100 Alt. 19 Nonh
Palm Harbor, FL 34683

OWBAS Il253194 USB-OWBAS -- CJ2577013 form5/frmtxgl

11111111111111111111111111111111111111111111111111
*11253194*

FILED AND RECORDED
OFFICIAL PUBLIC RECORDS

tl~
Jun 22, 2010 02:28 PM
2010889111
PEREZTA: $16.00
Dana O.Baauvoir, County Clerk
Travis County TEXAS

2015
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 13

Affidavit of Lost Assignment RR Vol.4, p. 30
 .
TRV
2010089110 ;1;?
II IIIII 111111111111111111111111111111111/IIIIIIJI 11111111
2 PGS
Jf

511327L
AFFIDAVIT OF LOST ASSIGNMENT

The undersigned BRYAN BL Y, being duly sworn deposes and states as follows:

I. That (s)he is alan ATTORNEY-IN-FACT of FEDERAL DEPOSIT INSURANCE CORPORATION AS
RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B. having its
principle place of business at 6900 BEATRICE DR., KALAMAZOO, MJ 49009 , an officer duly authorized to
make this affidavit.

2. That (s)he has personal knowledge of the facts set forth in this Affidavit.

3. That FEDERAL DEPOSIT INSURANCE CORPORATlON AS RECEIVER FOR INDYMAC FEDERAL
BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B. ("Current Mortgagee") is the owner and holder of a
certain mortgage dated 08/30/1999 made by SHARON HADDOX AND GERALD R. HADDOX as mortgagors to
NATIONAL MORTGAGELINK, I LTD as original mortgagee, which mortgage was recorded in the office of the
Register or Recorder/Clerk of TRAVIS County, State of Texas on 09/01/1999 in Book/reel page or Clerk/Doc#
1999098156. This loan may or may not have been further assigned.
The mortgage premise are known as: 6508 TA YLORCREST DR, AUSTIN, TX 78749

4. That Current Mortgagee owns and holds said mortgage as a result of sale and assignment thereof to Current
Mortgagee from NATIONAL MORTGAGELINK, I LTD ("Mortgagee of Record").

5. That the files and records of Current Mortgagee relating to the mortgage do not contain either a recorded or an
unrecorded instrument of an assignment from Mortgagee of Record to Current Mortgagee.

6. That the Affiant has concluded that the Assignment was lost, misplaced or destroyed before the same could be
placed of record.

7. That Current Mortgagee is unable to obtain an instrument confirming the sale and assignment of said mortgage
from the Mortgagee of Record.

8. That Current Mortgagee duly and properly acquired the mortgage, and has thereafter serviced the same and has in
its possession the Note secured thereby and all of the other mortgage loan documentation pertaining to said
mortgage.

9. That Current Mortgagee is the owner of the mortgage and the Note secured thereby, and has not further assigned
or transferred said Note and mortgage to any other party.

10. That this affidavit is made to induce the Register/Recorder of said county to accept for recording this instrument,
executed and acknowledged by Current Mortgagee, in place of said lost, misplaced or destroyed assignment.

111111111111111111111111111 111111111111111111
*11959965* HAR 12 2015

EXHIIIT
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 14

Notice of Forfeited Rights RR Vol.4, p. 33-34
Corpomtions &ction Carlos Cascos
P.O.Box 13697 Secretary of State
Austin, Texas 78711-3697

Office of the Secretary of State

The undersigned, as Secretary of State ofTexas, does hereby certify that the attached is a true and
correct copy of each document on file in this office as described below:

NATIONAL MORTGAGELINK I, LTD.
Filing Number: 7566210

Notice of Forfeited Rights for Non-Filing of July 07, 2006
Periodic Report

In testimony whereof, I have hereunto signed my name
officially and caused to be impressed hereon the Seal of
State at my office in Austin, Texas on March 12, 2015.

Carlos Cascos
Secretary of State

Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: CTOBAR TID: 10266 Document: 595747200002
 lJ~t Roger Williams
P.O. Box 12028 Secretary of State
Austin, Texas 78711-2028

Office of the Secretary of State

July 7, 2006

Stephen F Sampaulesi
NATIONAL MORTGAGELINK I, LTD.
3934 FM 1960 WEST, STE 100
Houston, TX 77068

Periodic Report- Second Notification Letter

Re: NATIONAL MORTGAGELINK I, LTD.
File Number: 7566210

Dear Registered Agent:

Our records show that the above referenced limited partnership was notified over thirty (30) days ago of the need to
file with this office the report required by law. You are hereby notified that the limited partnership's right to
conduct affairs has been forfeited as of the date of this letter for failure to file the report. The limited partnership's
right to conduct affairs may be revived by submitting the attached periodic report to this office, along with the
required filing fee. This periodic report should be completed and received by this office on or before November 6,
2006 to avoid the cancellation or termination of the domestic limited partnership or the cancellation or revocation of
the registration of the foreign limited partnership.

One copy of the required periodic report is enclosed, along with instructions for completing the report. Make
any necessary changes to the preprinted information by typing or printing the new information in the area
provided. Submit the periodic report, along with the required filing fee that is shown on the attached report, to
the mailing address on the report form. Please make a copy of this report prior to mailing and retain for the
limited partnership's records.

Please disregard this notice if you have mailed your document for processing within the last seven (7) days. If
your records reflect that you filed the required report, please send a copy of your cancelled check showing
payment of the filing fee.

For your convenience, the periodic report may be filed online through SOSDirect at
http :1/www.sos. state.tx. us/ corp/sosda/index.s html.

If you have any questions about filing the periodic report or require assistance filing online using SOSDirect,
please call 512-475-2705 or e-mail ReportsUnit@sos.state.tx.us.

Sincerely,
Reports Unit
Business and Public Filings Division

Enclosure

Come visit us on the Intemet@ http://www.sos.state.tx.us/
Phone: 512-475-2705 Fax: 512-463-1425 Dial: 7-1-1 for Relay Services
 No. 03-15-00350-CV

In The Court of Appeals
For the Third District Court of Appeals
Austin, Texas

GERALD R. HADDOX and SHARON HADDOX
Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 15

Certificate of Limited Partnership